Laber and Laber (Child support)

[2018] AATA 4472

Laber and Laber (Child support) [2018] AATA 4472 (15 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014656

APPLICANT:  Mr Laber

OTHER PARTIES:  Child Support Registrar

Ms Laber

TRIBUNAL:Member S Letch

DECISION DATE:  15 October 2018

DECISION:

The decision under review is varied so that the arrears of child support owing for the period 13 June 2018 to 28 June 2018 is $603.54 (not $735.64).

CATCHWORDS
CHILD SUPPORT – three months arrears – whether there were unpaid amounts – decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Laber is assessed by the Child Support Agency (“CSA”) to pay child support to Ms Laber.

2. Child support payments were being collected privately when, on 29 June 2018, Ms Laber applied to the CSA to collect on her behalf. Mr Laber had been making fortnightly payments of $822 directly to Ms Laber’s bank account; on or around 29 June 2018, Mr Laber transferred only $281.90. He had discovered that for the preceding 23 fortnights, he was paying $822 when the assessment required the lesser sum of $795.58. He calculated he had “overpaid” $607.66 (23 fortnights at $26.42 per fortnight) – this led him to “self-assess” and make an adjustment for the instalment he transferred to Ms Laber for the period ended 28 June 2018.

3. On 2 July 2018, the CSA accepted Ms Laber’s application for collection, and calculated arrears were owed for the period 13 June 2018 to 28 June 2018 in the sum of $735.64. The CSA determined that it could not take into account any “overpayments” paid by Mr Laber for past periods.

4. On 20 July 2018, an objections officer disallowed Mr Laber’s objection. On 24 July 2018, Mr Laber applied for review by the Tribunal.

5. The Tribunal conducted a hearing on 12 October 2018. Mr Laber and Ms Laber participated in the hearing by conference telephone.

CONSIDERATION

1. Mr Laber told the Tribunal he had not received any statements from the CSA; he was not aware he was paying “too much”. Mr Laber told the Tribunal that he considers it only fair that “overpayments” be taken into account. Ms Laber told the Tribunal she is happy with the assessment made by the CSA.

2. Section 28A of the Child Support (Registration and Collection) Act 1988 provides for the CSA to collect any unpaid amounts payable under the child support liability in relation to the three months prior to registration of the case for collection.

3. In this matter, the “arrears period” considered by the CSA has been limited to 13 June 2018 to 28 June 2018. In the Tribunal’s assessment, it is proper to have broader regard to the three-month period prior to Ms Laber’s application for collection in determining the extent of arrears owed; in other words, if overpayments were made during that three-month period, they ought properly to be taken into account in assessing the quantum of any arrears owed.

4. It appeared not disputed by the parties that Mr Laber had been making instalments which exceeded his assessed liability by $26.42 per fortnight. Similarly, it was accepted that Mr Laber’s liability for the period 13 June 2018 to 28 June 2018 had been “underpaid” by $735.64.

5. Assuming six fortnightly instalments in the three-month period prior to 29 June 2018, the Tribunal considers it appropriate in the circumstances of the case to take into account five earlier fortnightly instalments prior to Ms Laber opting for collection for which Mr Laber overpaid by $26.42 per fortnight. It would be proper for a total of $132.10 to be deducted from the arrears amount.

6. The Tribunal understands that Mr Laber seeks overpaid instalments going back to August 2017 to be credited against his child support liability. However, in the absence of exceptional circumstances, the legislation limits the arrears period to three months; there is no scope to consider overpaid instalments made prior to the three-month period prior to 29 June 2018. There is no other provision which can assist Mr Laber; it is unfortunate for Mr Laber that he did not detect the miscalculation earlier. The Tribunal observes that despite Mr Laber indicating he was not advised of the assessment, the CSA materials contain a notice sent to him dated 26 October 2017 which disclosed his fortnightly liability of $795.58.

7. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be varied.

DECISION

The decision under review is varied so that the arrears of child support owing for the period 13 June 2018 to 28 June 2018 is $603.54 (not $735.64).